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Family, domestic and sexual violence (FDSV) causes immediate and long-lasting harm. The legal systems in Australia provide formal responses for people who experience FDSV (victim-survivors) that can prevent or reduce violence and punish those who have used violence. In this section, we highlight the available data on legal responses to FDSV.

How do victim-survivors interact with legal systems?

This page outlines aspects of legal systems that are specific to FDSV, such as the definitions of family and domestic violence (FDV) and sexual violence used in legislation across Australia, the legal responses available to prevent or respond to FDSV, and the legal assistance services available to help people engage with legal systems, see Table 1. Police are a key entry point to formal FDSV responses for many victim-survivors and people who use violence including those offered by legal systems. However, many victim-survivors of FDSV do not contact police, and not all cases reported to police are pursued further in legal systems (ABS 2009). For more information on FDSV and the police, see Family and domestic violence reported to police and Sexual assault reported to police.

Legal definitions of FDV and sexual violence

There is currently no uniform legal definition for FDV or sexual violence across federal and state and territory legislation, which includes family law, criminal law and other types of legislation (Table 1). Due to this, the legal responses to FDSV and to specific offences vary across states and territories. In cases where legal definitions of FDV are related to eligibility to receive a specialist FDV (or FV) service, differences in the definition of FDV can restrict access to support for victim-survivors in some jurisdictions (ALRC and NSW LRC 2010; SCSPLA 2021).

Table 1: Legal systems and FDSV
Legislation related to FDSVLegal responses to FDSVLegal assistance services

FDSV is defined in these federal, state and territory legislation.

Federal

  • Family legislation
  • Criminal legislation
  • Human rights legislation
  • Migration legislation

State/Territory

  • Child protection legislation
  • Family violence legislation
  • Family legislation (Western Australia only)
  • Criminal legislation
  • Human rights legislation
  • Victims’ compensation and support legislation

Legal responses to FDSV describe the use of legal systems to enforce laws that can punish or prevent violence.

Police enforce criminal law, can intervene in certain situations and can charge a person with a crime. This may result in a person going to court.

Courts assess evidence and make judgements about how laws apply to situations, whether laws have been broken and what happens in response. They can include mainstream or specialist family and domestic violence courts.

Specific responses related to FDSV:

  • Domestic Violence Orders (DVOs)
  • Proceedings for criminal FDV offences and sexual assault and related offences
  • Parenting orders and financial orders

Legal assistance services help people who have experienced FDSV to engage with legal systems.

Legal assistance services include:

  • Legal aid commissions
  • Family Advocacy and Support Service
  • Specialist family and domestic violence services
  • Health justice partnerships
  • Aboriginal and Torres Strait Islander Legal Services
  • Family Violence Prevention Legal Services
  • Community Legal Centres
  • Family Relationship Centres

For more information, visit the Attorney-General’s Department website.

Note: The terms used to identify DVOs vary between states and territories, see Box 1.

Sources: AGD n.d.a; ALRC and NSW LRC 2010; SCSPLA 2017, 2021.

The types of abusive behaviours covered in each jurisdiction’s legislation not only differ but also can change over time to incorporate other forms of FDV such as economic abuse, technology-facilitated abuse, and coercive and controlling behaviours (refer to Coercive control, Intimate partner violence and Stalking and surveillance). Similarly, legal definitions of consent and sexual violence continue to evolve to better protect people from different forms of sexual violence (refer to Sexual violence and Consent).

The laws around child protection also vary across states and territories. The jurisdictions have responsibility for investigating and responding to child protection issues, including exposure to or experiences of domestic and family violence (National Legal Aid 2019b). For a discussion of data related to child protection, see Child protection.

Legal responses to FDSV

Legal responses to FDSV can involve civil and criminal proceedings of state and territory courts. On this page, proceeding refers to all the processes required to formally complete a case by a court:

  • civil proceedings can result in domestic violence orders (DVOs) that aim to protect victim-survivors of FDV from future violence
  • criminal proceedings can punish people for criminal conduct related to FDV and sexual violence.

The terms used to refer to DVOs vary across jurisdictions (see Box 1). This report uses the term DVO to collectively refer to all terms used for DVOs nationally. In some states and territories temporary DVOs can be issued by police. If a DVO is breached, the matter can become a criminal offence. FDV that forms the basis for a DVO may also be the grounds for criminal proceedings (for example, physical and/or sexual assault). FDV that is not considered criminal under FDV legislation may still be used as the basis for DVOs (ALRC and NSW LRC 2010).

Most criminal and civil proceedings related to FDV are formally completed in the Magistrates’ Courts of each state and territory jurisdiction (see Box 2 for an explanation of court level groups). Criminal proceedings related to sexual violence are also often formally completed in Higher Courts (ABS 2023b; Productivity Commission 2023).

Restorative justice is an alternative response to FDSV whereby parties involved with a specific offence collectively resolve how to deal with an offence and its implications for the future (see Box 3).

FDSV can affect decisions related to family law. This includes cases where there are issues around the division of finances and/or property after separation, and/or issues with parenting orders (a set of orders about the parenting arrangements for a child). Some matters related to family law can be considered in the Magistrates’ courts. The most complex family law disputes, including those involving FDV, are considered in the Federal Circuit and Family Court of Australia, and the Family Court of Western Australia. The Federal Circuit and Family Court of Australia was formed by combining the previous Family Court of Australia with the Federal Circuit Court of Australia as of 1 September 2021 (FCFCOA 2022e; SCSPLA 2017).

There are specialist FDV courts in locations around Australia (ALRC and NSW LRC 2010). These courts specialise in the handling of civil and/or criminal FDV matters. While the model for each court varies between jurisdictions, they generally use specialised case coordination mechanisms, integration with support and referral services, and special arrangements for victim-survivor safety (McGowan 2016). Evaluations of these specialist courts generally show advantages compared with mainstream courts, such as simpler navigation through legal systems, faster processing of cases and improved access to services for victim-survivors (McGowan 2016; ARTD consultants 2021).

Legal assistance services related to FDSV

General and tailored legal assistance services are available to advise and help people who have experienced or perpetrated family, domestic and sexual violence engage with legal systems (AGD n.d.a):

  • Each state and territory has a Legal Aid Commission that provides services, including legal advice and representation in courts and tribunals for victim-survivors and perpetrators of FDSV (AGD n.d.a). Services are free of charge to people who meet means and merits tests set by each commission.
  • Each Legal Aid commission has a Family Advocacy and Support Service that combines free legal advice and support at court for people affected by FDV (National Legal Aid 2019a).
  • Specialist domestic violence units help women affected by FDV, who may otherwise be unable to access the support they need, with tailored legal assistance and other holistic support (AGD n.d.c).
  • Through health justice partnerships, lawyers provide women affected by FDV with legal assistance in healthcare settings (AGD 2022).
  • Aboriginal and Torres Strait Islander Legal Services (ATSILS) provide culturally appropriate and safe legal assistance services to First Nations (Aboriginal and Torres Strait Islander) victim-survivors and perpetrators of FDSV. The National ATSILS website provides links to State and Territory specific services (NATSILS 2022).
  • The National Family Violence Prevention Legal Services program include First Nations community-controlled organisations throughout Australia who provide culturally safe legal services for First Nations people who experience FDV (NFVPLS 2022).
  • Community legal centres are independent, community-managed, non-profit organisations offering free and accessible legal help to everyday people (CLCA 2019).
  • Family Relationship Centres provide information about healthy family relationships, family dispute resolution mediation, advice around separation and referral to other specialist services (Family Relationships Online 2022).

Related formal responses and services

Apart from legal systems, there are a wide range of other services that work with victim–survivors, perpetrators and families in preventing and responding to FDSV. For more information, see Services responding to FDSV.

For example, perpetrator intervention programs aim to help people who use violence to stop using it. Court judgements can mandate individuals to attend perpetrator interventions as a part of legal proceedings (ANROWS 2021; Mackay et al. 2015).

For information related to specific services, see Specialist perpetrator interventions, Health services, Housing and Helplines and related support services.

What do we know?

DVOs are the most broadly used legal response to FDV (Taylor et al. 2015). Research suggests that DVOs can help as a deterrent through risk of punishment, through setting boundaries and reducing access to the victim-survivor, and by clearly defining the violence and its criminality (Dowling et al. 2018). There are, however, relatively few studies that assess the effectiveness of DVOs. Reviews of the available research found that DVOs:

  • result in a small but significant reduction of re-victimisation
  • are more effective for victim-survivors who are employed and/or in a higher socioeconomic group
  • are less effective where perpetrators have histories of FDV and criminal offending, mental health issues, and they share children with the victim-survivor
  • can improve victim’s and survivors’ perceptions of safety (Bell and Coates 2022; Dowling et al. 2018).

Research into how Australian legal systems respond to FDSV have identified some key issues, including:

  • Misidentification of the victim–survivor as the perpetrator – this can occur when legal systems do not consider the wider context of violence and misinterprets the victim–survivor’s behaviour. For example, a victim–survivor may use violence in response to violence perpetrated against them and may appear agitated or ‘uncooperative’. These are normal responses to trauma and can be misinterpreted (Nancarrow et al. 2020).
  • Adversarial environments – legal proceedings can expose victim–survivors to victim-blaming, unfair treatment and re-traumatisation. Historically, unsafe practices have also been used, such as shared waiting rooms and inappropriate lines of questioning (Deck et al. 2022; DSS 2022).
  • Barriers to accessing legal services – access to legal systems can be limited due to many factors including: negative experiences with police and the judiciary; costs; the complexity of legal processes; concerns about giving evidence against family members due to shame, stigma, a fear of retaliation, or other reasons; and limitations in available legal services, culturally and linguistically appropriate services and coordination between legal and other services (DSS 2022).
  • Legal system abuse – Legal systems can be misused by perpetrators of FDSV to further victimise people (see Box 3).

Issues within legal systems have contributed to mistrust of the systems and are worsened by historical and ongoing discrimination and stereotyping experienced by parts of Australian society including First Nations people, culturally and linguistically diverse communities, LGBTIQA+ people, older people and people with disability (DSS 2022).

There are ongoing efforts to respond to these issues and combat systems abuse, such as the development of specialist courts that deal with FDV offences and sexual offences, tailored legal assistance services and legal system reforms. Future efforts towards improving legal systems are highlighted in the National plan to end violence against women and children 2022–2032; and The Meeting of Attorneys-General work plan to strengthen criminal justice responses to sexual assault 2022–2027 (DSS 2022; AGD 2022).

The 2 main national data sources used in this topic page are ABS Criminal Courts and the Report on Government Services – Courts. For more information about these data sources, please see Data sources and technical notes.

What do the data tell us about legal systems?

Civil courts – Domestic violence orders

  • 51%

    About half (51% or 123,000) of civil cases in the Magistrates’ Courts in 2021–22 involved a domestic violence order

    Report on Government Services - Courts

About half (51% or 135,000) of civil cases finalised in the Magistrates’ Courts in 2021–22 involved finalised originating applications for DVOs (Productivity Commission 2023). The Northern Territory (95%) had the highest proportion of civil cases involving applications for DVOs and the Australian Capital Territory had the lowest (13%) (Figure 1). Offences such as breaches of DVOs are dealt with by state and territory criminal courts (see Criminal courts).

Figure 1: Proportion of civil cases finalised in the Magistrates’ Courts that involved finalised originating applications for DVOs, by state or territory, 2021–22

Figure 1 shows the number and proportion of civil cases finalised in the Magistrates’ Courts involving an originating application for DVOs in each state and territory.

Notes

  1. Finalised originating applications for DVOs include new applications and exclude interim orders, applications for extension, revocations or variations. Civil non-appeal lodgements that have had no court action in the past 12 months are counted as finalised.
  2. In Tasmania, police can issue Police Family Violence Orders (PFVOs) which are more numerous than court-issued orders. PFVOs are excluded from this table.

Source: Productivity Commission 2023.

Criminal courts

Family and domestic violence offences

  • About 4 in 5 defendants

    (81% or 67,600) finalised for family and domestic violence offences in 2021–22 were found guilty

    Source: ABS Criminal Courts

About 83,800 defendants were ‘finalised’ for FDV offences in Australia in 2021–22 (FDV defendants). Of these:

  • about 4 in 5 (81%, or about 67,600) were found guilty
  • about 1 in 20 were acquitted (4.9%, or about 4,100)
  • about 1 in 7 (14%, or about 11,900) were withdrawn by the prosecution (ABS 2023a).

The proportion of defendants finalised for FDV offences that were found guilty varied by state and territory, with the proportion about 70% or greater for all except South Australia (40%). The majority of defendants were finalised in the Magistrates’ Courts (91%, or about 78,300) (ABS 2023a).

The most serious offence for the majority of family and domestic violence court cases in 2021–22 was either Acts intended to cause injury (48% or 40,400) or Breach of violence order (40% or 33,600).

The most common principal offences among defendants finalised for FDV in 2021–22 were Acts intended to cause injury (48%, or about 40,400), including around 33,900 with a principal offence of Assault, and Breach of violence order (40%, or around 33,600) (Figure 2).

Figure 2: The most common principal offence categories among FDV defendants, 2021–22

Source: ABS Criminal Courts | Data source overview

The offence Breach of violence order is often heard in cases involving ‘more serious’ FDV-related offences (for example assault), which usually become the principal FDV offence for the defendant (ABS 2023b). The total number of FDV defendants finalised for Breach of violence order, regardless of whether this was their principal FDV offence, was about 47,600 in 2021–22 (ABS 2023a).

The proportion of finalised FDV defendants found guilty in 2021–22 varied by principal FDV offence category with the highest proportion for Breach of violence order (92%) compared with Property damage (88%), Stalking, harassment and threatening behaviour (79%), Acts intended to cause injury (72%) and Sexual assault and related offences (57%) (ABS 2023a).

The majority of orders given to defendants that were found guilty for FDV offences in 2021–22 were non-custodial orders (73%, or 49,300 of 67,600). This pattern was similar for most principal FDV offences but not for Homicide and related offences (98% custodial orders) and Sexual assault and related offences (66% custodial orders) (ABS 2023a).

The most common non-custodial order varied by principal FDV offence, with the most common for:

  • Acts intended to cause injury – other non-custodial orders (including good behaviour bond/recognisance orders, nominal penalty) (32%, or 9,200 of 28,900)
  • Breach of violence order – monetary orders (39%, or 12,000 of 30,800) (ABS 2023a).

About 4 in 5 (81%) finalised family and domestic violence defendants in 2021–22 were male.

About 4 in 5 (81%, or 68,000) finalised FDV defendants in 2021–22 were male and less than 1 in 5 (19%, or 15,800) were female (ABS 2023a).

The pattern for the most common principal FDV offence among all finalised FDV defendants (including transfers to other court levels) was similar for males and females:

  • Acts intended to cause injury was the most common offence for both (47% or 32,200 and 51% or 8,100, respectively)
  • followed by Breach of violence order (41%, or 27,800 and 37%, or 5,800, respectively), and all other FDV offences (ABS 2023a).

Most finalised FDV defendants were aged 25–29 (15% or 12,700), 30–34 (16% or 13,300) or 35–39 (15% or 12,900) with decreasing numbers for younger (5.9% for people aged 10–19) and older age groups (6.5% for people aged 55 years and over) (ABS 2023a).

Sexual assault and related offences

About 3 in 5 (58%) defendants finalised for Sexual assault and related offences in 2021–22 were found guilty.

About 7,300 defendants were ‘finalised’ for Sexual assault and related offences in 2021–22. Of these:

  • About 3 in 5 finalised defendants were found guilty (58%, or about 4,300).
  • About 1 in 8 finalised defendants were acquitted (13%, or about 990).
  • About 1 in 4 were withdrawn by the prosecution (27%, or about 2,000) (ABS 2023a).

As noted previously, on this topic page ‘finalised’ indicates that charges have been finalised by methods other than ‘transfer to other court levels’ (see Data sources and technical notes). The number of defendants finalised for Sexual assault and related offences by transfer to other court levels in 2021–22 was about 3,500 compared with about 7,300 finalised by other methods (ABS 2023a).

Almost all (96%) finalised defendants for Sexual assault and related offences in 2021–22 were male.

Almost all finalised defendants with a principal offence of Sexual assault and related offences in 2021–22 were male (96%, or about 7,100) with only 3.8% (280) female (ABS 2023a). The proportion of defendants across 5-year age groups were similar for those aged 20–24, 25–29, 30–34, 35–39 and 40–44 years with each contributing to between about 10% and 12% of all defendants (ABS 2023a).

Family courts

Experiences of family violence were alleged in 4 in 5 (80%) applications for parenting or parenting and property orders in 2021–22.

Data from the Notices of Child Abuse, Family Violence or Risk filed with applications for final orders seeking parenting or parenting and property orders with the Federal Circuit and Family Court of Australia in 2021–22 indicated that:

  • in 7 in 10 (70%) matters, one or more parties alleged that a child had been abused or was at risk of child abuse
  • in 4 in 5 (80%) matters, one or more parties alleged they have experienced family violence
  • in 2 in 3 (66%) matters, there were four or more risk factors alleged by either party (FCFCOA 2022a).

The Federal Circuit and Family Court of Australia have recently launched a new case management model that aims to better prioritise and address cases in which there is increased risk of harm from FDV (see Box 7).

In 2021–22, about 105 Family Court cases were started that involve serious allegations of child physical abuse and/or sexual abuse.

In 2021–22, about 105 cases involving serious allegations of physical abuse and/or sexual abuse of a child were started in the Federal Circuit and Family Court of Australia, and about 130 cases were finalised (FCFCOA 2022a). These cases are referred to as Magellan cases, and undergo special case management by a team consisting of a judge, a registrar and a family consultant. Typically, a Magellan case is addressed by the Federal Circuit and Family Court of Australia where one (or both) parties have raised serious allegations of sexual abuse or physical abuse of children in a parenting dispute (FCFCOA 2022a).

Has it changed over time?

Since the COVID-19 pandemic began there has been an increase in deferrals and delays across all court proceedings. This has been due, in part, to complications related to conducting proceedings electronically and the effect of public health measures such as stay-at-home orders. Hence, changes over time and differences between states and territories may reflect these effects rather than, for example, crime rates or sentencing changes (ABS 2023a; FCOA 2021).

Civil courts– Domestic violence orders

In 2021–22, finalised applications involving DVOs made up a higher proportion (51%) of all civil cases finalised in the Magistrate’s courts than in previous years (41% in 2020–21, 33% in 2019–20 and 35% in 2018–19) (Table 2).

Table 2: Finalised originating applications involving DVOs in Magistrates’ courts, 2018–19 to 2021–22
YearFinalised applications involving DVOs ('000)Proportion of all civil cases
2018–19120.935%
2019–20110.633%
2020–21125.241%
2021–22135.451%

Notes:

  1. In Tasmania, police can issue Police Family Violence Orders (PFVOs) which are more numerous than court-issued orders. PFVOs are excluded from this table.
  2. Finalised applications involving DVOs only includes originating applications and non-appeal cases.
  3. Finalised applications includes transfers to other court levels.
  4. Due to perturbation, component cells may not add to total.

Source: Productivity Commission 2023.

Criminal courts

Family and domestic violence offences over time

From 2019–20 to 2021–22, there was a 30% increase in the total number of finalised defendants for FDV offences in Australia (from about 64,500 to 83,800) (ABS 2023a). The number increased for all states and territories over this period (Table 3). Changes over time may reflect an improved methodology for identifying FDV-related offences that was introduced in South Australia and Western Australia in 2021–22 (ABS 2023b).

Table 3: Defendants finalised for FDV offences, by state and territory, 2019–20 to 2021–22 and the percentage change between 2019–20 and 2021–22
State or Territory2019–202020–212021–22% change 2019–20 to 2021–22
NSW25,08332,99530,39621% increase
Vic14,12612,29317,94427% increase
Qld12,75418,43619,48653% increase
WA5,3525,2826,935n.p.
SA2,4032,7313,679n.p.
Tas1,4931,8211,71515% increase
ACT52961658711% increase
NT2,7903,3713,10711% increase
Australia64,53077,54583,84930% increase

n.p.: Data not published.

Notes:

  1. Defendants finalised excludes those finalised through transfer to other court levels, see Data sources and technical notes.
  2. Court operations in all three financial years were impacted by the COVID-19 pandemic and changes may reflect these impacts rather than, for example, crime rates or sentencing changes.
  3. Changes over time may reflect an improved methodology for identifying FDV-related offences that was introduced in South Australia and Western Australia in 2021–22.
  4. Due to perturbation, component cells may not add to total.

Source: ABS 2023a.

Sexual assault and related offences over time

The number of defendants finalised for Sexual assault and related offences has generally increased from 2010–11 to 2021–22.

From 2010–11 to 2021–22, the number of defendants finalised (including transfers to other court levels) for Sexual assault and related offences has generally increased, with the lowest number in 2013–14, about 5,200, and highest in 2021‒22, about 7,300 (Figure 3).

Figure 3: Defendants finalised for Sexual assault and related offences, 2010–11 to 2021–22

Source: ABS Criminal Courts | Data source overview

Family Courts

Notices of Child Abuse, Family Violence or Risk of Family Violence were increasing over time before they became compulsory.

From 2014–15 to 2019–20, the number of cases in which a Notice was filed increased (from about 470 cases in 2014–15 to about 740 in 2019–20) (FCOA 2019, 2020).

This may have reflected an increase in the extent to which violence plays a role in Family Court cases, growing awareness of family violence in the community, or a combination of the two. Note that these cases do not include those dealt with in the Family Court of Western Australia (FCOA 2020).

As it became compulsory to file a Notice with every initiating application seeking parenting orders from 31 October 2020, changes in notices over time no longer relate to changes in allegations of abuse.

The number of Magellan cases (cases involving serious allegations of physical abuse and/or sexual abuse of a child) that were started and finalised each year has varied between 2019–20 and 2021–22 (Figure 4).

Figure 4: Magellan cases, 2019–20 to 2021–22

Source: Federal Circuit and Family Court of Australia | Data source overview

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